SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
Giorgia Lucchini (LUMSA)
Abstract
Robert Sugden’s contribution to Law and Economics does not seem to be explored as it merits. Indeed, his work has been having success in different economic branches, including game theory, philosophy of economics, microeconomics, behavioral economics and so forth rather than in Law and Economics (or economic analysis of law). However, one of the themes deepened by the English scholar which is relevant for the aforementioned studies regards conventions and in particular their role in the emergence of an order.
Starting from his book ‘Economics, rights, cooperation, and welfare’ dated 1986, he has been developing his theory of conventions, which is deeply influenced by the works of David Lewis (1969).
Conventions play an important role in relationships among individuals. They do not have relevance only with reference to economic relationships but also for instance to social, legal, and political ones.
Even though conventions are not legal rules and therefore they are not legally binding, their importance is not to be overlooked. Particularly, Law and Economics’ interest relies on the impact that conventions have on individuals’ behaviors compared to legal (written) rules.
Sugden’s elaboration on the role of conventions, including their emergence and evolution, pertains to a broader research which concerns the idea of spontaneous order (Sugden 1986, 1989, 2018, 2024). Indeed, conventions might be taken as an example of spontaneous order that contribute to the clarification about how spontaneous orders emerge.
The idea underlying the current research is that conventions might help in better understanding how individual knowledge (Hayek 1937, 1945) influences the formation of conventions, which also may reveal the morality of specific time and place.
The Law and Economics field of research which has been contributing spreading interdisciplinary studies has been overlooking the findings of philosophy of economics, focusing instead on microeconomics and applying it to law broadly intended.
Sugden’s works on economic rationale underlying conventions could be a good starting point in order to deepen the concept of spontaneous order from a Law and Economics perspective, in which the role of the Law is not primary (Ellickson 1991, Hayek 1973, Leoni 1991). On the contrary, the market becomes the paradigm that governs relationships among individuals. Therefore, the arise of a spontaneous order might be favored only by conventions’ functioning (without recurring to formal legal rules). Indeed, conventions seems to be a tool that adapt well to changing in individual knowledge (and morals).